Reflections On The Justice And Welfare Debate For Children In The Irish Criminal Justice System
| Author | Justice John O'Connor |
| Position | LLB, LLM (N.U.I) M. Litt (TCD), FCIArb, mediator (CEDR), solicitor and appointed as a judge of the District Court in 2012 and of the Circuit Court in 2019 |
| Pages | 19-39 |
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[2019] Irish Judicial Studies Journal Vol 3
REFLECTIONS ON THE JUSTICE AND WELFARE
DEBATE FOR CHILDREN IN THE IRISH CRIMINAL
JUSTICE SYSTEM
Abstract
An historic neglect of juvenile justice in Ireland was ultimately replaced with substantial legislative changes by the
Children Act 2001. However, the Children Court still faces challenges. ‘Childhood’ is a transient status and
children in conflict with the law frequently have multiple and complex issues. The question posed in this article is
whether ‘childhood’ as a status deserves a wider recognition than just a narrow ‘justice’ versus ‘welfare’
debate. Victims’ rights, serious crime and the recognition of adolescence as a transient state tests the courts response
and much depends on the skills of lawyers and judges to deliver an effective youth justice system.
Author: Judge John O’Connor LLB, LLM (N.U.I) M. Litt (TCD), FCIArb, mediator (CEDR), solicitor
and appointed as a judge of the District Court in 2012 and of the Circuit Court in 2019.
Introduction
The history of juvenile justice policy is a profoundly political subject1 characterised by conflict,
contradictions, ambiguity, and compromise.2 The debate has until the 1980’s primarily been
concerned with control, rehabilitation, and punishment of children. More recently the global
converging of criminal justice policies appears to adopt a more managerial approach to juvenile
crime, focusing on efficiency, legitimacy, identity, and equity with an emphasis on measurable
risk assessments.3
The collapse of public confidence in national governance, financial collapse, terrorism and the
fear of the bogus asylum seeker has had a negative impact on Welfarism and ‘meeting needs’ has
been by overlaid by ‘addressing fears’.4 In the context of juvenile justice, this could be
detrimental to dealing effectively with children in conflict with the law, who, by their very nature
of being a child, should be treated in a different manner from adult offenders. Here, the
treatment of young offenders must be approached on a multifactorial basis and not solely
attributable to the justice/welfare debate, particularly in light of their childhood status.
Notwithstanding this, the commission of serious crimes raises an issue as to the approach to be
taken by courts when dealing with child offenders, particularly in light of the increased
protections afforded to victims by virtue of the strengthening of victims’ rights.
If, as Bingham5 says, the rule of law is the closest thing to a secular religion we have, then
commandments of juvenile justice. All countries have ratified the UNCRC except the United
Notwithstanding its near-universal acceptance, it is one of the most violated conventions in the
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1 John Muncie, Youth and Crime (4th edn, Sage Publishing 2014).
2 James Austin and Barry Krisberg, ‘Wider, stronger and different nets: the dialectics of criminal justice reform' (1981) 18(1)
Journal of Research in Crime and Delinquency 165.
3 John Muncie, Youth and Crime (4th edn, Sage Publishing 2014).
4 ibid, 350.
5 Tom Bingham, The rule of law (Penguin 2011).
6 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
(UNCRC).
7 Maria José Bernuz Beneitez and Els Dumortier, 'Why Children Obey the Law: Rethinking Juvenile Justice and Children’s Rights
in Europe through Procedural Justice' (2018) 18(1) Youth Justice 34.
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world,8 and its weak control mechanisms allow some countries to provide ‘lip service to children
rights simply to be granted recognition as a modern developed state’.9
Juvenile Justice: Then And Now
The origins of the Irish Youth Justice Service (IYJS) and the justice/welfare debate can be traced
back to pre-independence (1922), British legislation and institutional developments relating to
children.10 Though the legal landscape began to move prospectively in many respects, the Irish
juvenile justice system remained in place and did not move from its nineteenth-century regime
until the twenty-first century. There was some reform in 1924, which changed practice and
procedure rather than principle,11 but the majority of children continued to be detained in
industrial schools, most of which were run by Catholic religious organisations. 12 Policy
developments where thin on the ground,13 but there was also a considerable lack of Irish
research on child care and juvenile justice.14
The Children Act 2001 (‘2001 Act’) replaced the Children Act 1908 Act (‘1908 Act’) regarding
juvenile justice and was signed into law in July 2001, though not fully implemented until July
2007.15 The 2001 Act marked a significant step and explicitly provided for a system to deal with
children in conflict with the law that was separate and distinct from the system for adult
offenders. Notwithstanding this development, Ireland does not yet have a wholly separate
Children Court, though the District Court doubles as a Children Court for summary and most
indictable offences.16 Except for Dublin City, children in 2019 are still accommodated in adult
courts in Ireland; however, the Children Court must sit at different rooms or buildings and at
different times than the ordinary District Court. 17 The physical environment, layout, and
structure of the courtroom can have a significant impact on the extent to which young people
can participate in proceedings.18
The ethos of treating children separately to adults and the importance of the in camera rule is
reflected in the United Nations Standard Minimum Rules on the Administration of Juvenile
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8 Barry Goldson and John Muncie (eds), Youth Crime & Justice (2nd edn, SAGE 2015) 260.
9 Maria José Bernuz Beneitez and Elizabeth Dumortier, 'Why Children Obey the Law: Rethinking Juvenile Justice and Children’s
Rights in Europe through Procedural Justice' (2018) 18(1) Youth Justice 34, 37.
10 Una Convery and Mairead Seymour, 'Children, crime, and justice' in Deirdre Healy, et al (eds), The Routledge handbook of Irish
criminology (Routledge 2016).
11 FSL Lyons, Ireland Since the Famine (Weidenfeld and Nicolson 1971).
12 Paul Sargent, Wild Arabs and savages: A history of juvenile justice in Ireland (Manchester University Press 2013). The Children Act
2001 was preceded by a number of detailed Reports (including the Henchy Report - Interdepartmental Committee on Mentally
Ill and Maladjusted Persons, Third Interim Report: Treatment and care of persons suffering from mental disorder who appear before the courts on
criminal charges (Prl 8275, 1978) and the Whitaker Report - Committee of Inquiry into the Penal System, Report of the Committee of
Inquiry into the penal system (1985) but Polic y developments where thin on the ground and there was a considerable lack of Irish
research on child care and juvenile justice.
13 ibid.
14 Committee on Reformatory and Industrial Schools, Reformatory and industrial school’s system Report 1970 (Prl 1342, 1970) (Kennedy
Report); Dermot Walsh, Juvenile Justice (1st edn, Thomas Round Hall 2005); Ursula Kilkelly, Youth justice in Ireland: Tough lives, rough
justice (Irish Academic Press 2006).
15 There was a general Commencement of the whole Act on 23rd July 2007, which was commenced by Children Act 2001
(Commencement) (No. 3) Order 2007, SI 2007/524.
16 Dermot Walsh, Criminal Procedure (2nd edn, Round Hall 2016).
17 Children Act 2001, s 71.
18 Ursula Kilkelly, Youth justice in Ireland: Tough lives, rough justice (Irish Academic Press 2006); T and V v United Kingdom App no
24724/94 (ECtHR, 16 December 1999).
19 UNGA United Nations Standard Minimum Rules for the Administration of Juvenile Justice UN A/RES/40/33 (1985).
20 UNCRC (n 6) – in 2007, the Committee on the Rights of the Child published General Comment 10 on Children’s rights in
juvenile justice.
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